Ochenski 

Environmental contempt? Top bureaucrats face jail time for defying courts

Agriculture Undersecretary Mark Rey was in Missoula this week in an attempt to keep U.S. District Court Judge Donald Molloy from tossing him in jail for contempt of court. Meanwhile, in Helena, the legal wheels grind on in a case concerning the Montana Department of Environmental Quality (DEQ) and its director Richard Opper, who face similar contempt of court charges. Both men have refused to abide by court orders in matters that seriously affect Montana’s environment.

Mark Rey came into his position as an appointee of President George Bush back in 2001. A sterling example of exactly what Republicans do when they’re in office, Rey was a former timber company lobbyist who was put directly in charge of the U.S. Forest Service. As a lobbyist, Rey fully understood just which rules and procedures needed to be changed or ignored to benefit his industry and, once given free rein over the nation’s forest resources, he went right after it.


Rey’s first initiative, which was clearly aimed at circumventing environmental compliance measures, was called the Healthy Forests Restoration Act. Under this wholly misleading title, Rey and his timber industry cohorts put forth the concept that the nation’s forests had somehow been allowed to slip into an unhealthy state that could be cured by, you guessed it, more logging.

While entities like Champion and Plum Creek were liquidating their forest assets via massive overcutting in the 1980s, the Forest Service was trying to meet the industry’s unending demand for more timber from national forests. But laws like the National Environmental Policy Act (NEPA), the Water Quality Act, and the Endangered Species Act required significant environmental analysis prior to logging and, even worse in the mind of the timber interests, allowed for public input that might just question the wisdom of massive clearcuts and their effect on fisheries, wildlife, and water quality—to say nothing of the fact that the Forest Service routinely lost millions of dollars by subsidizing the costly road building the harvests required.


When Rey stepped into the lead, the Forest Service got new marching orders. The agency would increase logging on national forests, but do it under the charade of returning the forests to health and, since it was a critical necessity according to the timber industry, they’d do it quickly by using categorical exclusions to skirt both the environmental analysis and public review the law required. It worked for all the years of the Bush administration, but recently the Ninth Circuit Court of Appeals ruled against using categorical exclusions for such purposes, bringing Rey’s scofflaw harvests to an end.


But that’s not what got Rey in trouble with Molloy. Employing the same cavalier attitude toward the law, Rey ignored Molloy’s ruling that the Forest Service stop using fire retardant containing ammonium phosphate because it had failed to analyze the retardant’s lethal components, which are blamed for killing 20,000 fish in Oregon in 2002. Instead of complying with Molloy’s order, Rey simply blew off the issue, did the legal stall and crawl, and continued to inundate the forests with fish-killing poisons from the sky.

Meanwhile, much closer to home, Richard Opper, the director of the Montana DEQ, faces a similar situation, only in Opper’s case, it concerns reclamation of the Golden Sunlight mine near Whitehall.

When it first opened, Golden Sunlight was lauded by the mining industry as an example of the new mining that, unlike the horror stories of the past, would be environmentally conscious.  Under the umbrella of Republican governors and legislative majorities, the mine ripped a huge open pit on the east side of the continental divide and then processed the ore using the now-illegal cyanide heap leach process. Within a few years, however, it became evident that, despite industry and regulator assurances, there were big problems with Golden Sunlight.

First the mine had to buy out nearby ranches because the groundwater beneath them had become contaminated by cyanide. Unfortunately, the poisonous plumes didn’t stop there, but continued toward the confluence of the Boulder and Jefferson Rivers where perpetual pollution is now predicted.

Seeking to enforce the Article IX provisions of the Montana Constitution for a “clean and healthful environment” and that “all lands disturbed by the taking of natural resources shall be reclaimed,” a cadre of environmental groups brought suit to force the state to take action. In 2002, a Montana court agreed with the environmental groups and ordered DEQ to immediately require Golden Sunlight to perform a partial backfill of the pit.

To make a long story short, after ignoring the court order for years while doing the same legal stall and crawl as Mark Rey, DEQ decided it would undertake another environmental analysis to determine if partial backfilling was the best option. To no one’s surprise, DEQ then found that not partially backfilling the pit was the best option. But the Constitution trumps the law, and the court order is still in effect. As plaintiffs succinctly put it in their brief: “In other words, DEQ simply decided it did not want to comply with the Court’s judgment. For that decision, it should be held in contempt.”

By the time this column goes to press, Rey will know his fate, but Opper and DEQ have to wait until March 17 for their hearing. Both cases, however, offer shocking examples of political appointees running government agencies—whose salaries and benefits are being paid by taxpayers—choosing to ignore both the law and the orders of the courts seeking to enforce those laws.


These cases set dangerous precedents of government officials run amok. It would set an excellent example for government officials across the board if, in the end, the courts took strong and unequivocal action against them. Considering what’s at stake, the compelling question demands an answer: If the law can’t control our government, who can?

Helena’s George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.
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